6 Highlights From the Ruling on Trump’s Immigration Order

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A court employee handed out copies of the decision on President Trump’s immigration ban outside of the Ninth Circuit Court of Appeals Building in San Francisco on Thursday.CreditCreditJim Wilson/The New York Times

A three-judge panel of the United States Court of Appeals for the Ninth Circuit on Thursday unanimously upheld a Federal District Court judge’s decision to temporarily block the Trump administration from carrying out its executive order on immigration. The executive order would bar entry into the United States of citizens from seven majority-Muslim countries. Here are some highlights from the ruling:

Trump loses, for now

To rule on the government’s motion, we must consider several factors, including whether the government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. ... [W]e hold that the government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay. [Page 3]

The court summarizes what the case is about at this stage. Its job is not to look squarely at whether the executive order is lawful, but rather at whether the standards have been met to temporarily block the government from enforcing it while the broader legal questions are more fully considered. The judges unanimously decided to keep blocking the order.

The states can sue

We therefore conclude that the states have alleged harms to their proprietary interests traceable to the executive order. The necessary connection can be drawn in at most two logical steps: (1) the executive order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. [Page 12]

The Trump administration had argued that the appeals court should reject the lawsuit without scrutinizing any of its legal merits, because the two states that filed it had no standing to sue. The appeals court disagreed, primarily because of the impact the travel ban would have on public universities.

No unfettered power

[T]he government has taken the position that the president’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. ... There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. [Pages 13-14]

The Trump administration has argued that the judiciary should stay out of the case. The appeals court strongly disagrees as a matter of constitutional first principles.

Skepticism of the administration

At this point, however, we cannot rely upon the government’s contention that the executive order no longer applies to lawful permanent residents.... Moreover, in light of the government’s shifting interpretations of the executive order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. [Pages 13-14]

Several days after Mr. Trump issued his executive order, the administration partially pulled back with a directive from his White House counsel, Donald F. McGahn II, saying it would not apply to green card holders. The judges are dubious about the credibility of what the executive branch says is happening.

Questions of due process

The government has not shown that the executive order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel. ... The procedural protections provided by the Fifth Amendment’s due process clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” ... These rights also apply to certain aliens attempting to re-enter the United States after traveling abroad. [Pages 19-21]

This is the core of the ruling. The court thinks it is likely that the executive order will eventually be struck down as an unconstitutional violation of people’s due process rights.

No immediate need

The government has not shown that a stay is necessary to avoid irreparable injury. ... Despite the district court’s and our own repeated invitations to explain the urgent need for the executive order to be placed immediately into effect, the government submitted no evidence to rebut the states’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years. The government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.

...

Aspects of the public interest favor both sides, as evidenced by the massive attention this case has garnered at even the most preliminary stages. On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay. [Pages 26-29]

In deciding whether to let the executive order be enforced while the arguments are more fully litigated, the courts have to weigh the potential injury to the people who would be affected by the travel ban against the potential injury to society of blocking the order in the interim. Because the Trump administration offered no evidence suggesting that the prior system was inadequate for screening visitors from the seven countries, the court ruled against the government.